fluidOps License Agreement
IMPORTANT, PLEASE READ CAREFULLY: THIS LICENSE AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU AND FLUID OPERATIONS AG, ALTROTTSTR. 31, 69190 WALLDORF, GERMANY (“FLUIDOPS”), FOR THE USE OF THE SOFTWARE PRODUCT DELIVERED WITH THIS AGREEMENT (“PRODUCT”). BY CLICKING ON THE "I ACCEPT" or "I AGREE" BUTTON OR OTHERWISE USING THE PRODUCT OR PARTS THEREOF, YOU AGREE TO BE BOUND BY THIS LICENSE AGREEMENT. IF YOU DO NOT AGREE YOU ARE NOT PERMITTED TO USE THE PRODUCT.
I. General Provisions
1. PRODUCT
1.1 The PRODUCT mentioned herein is the software product from FLUIDOPS as defined in the installation package and FLUIDOPS’ product list and consists of the software program and related products and services, including but not limited to: (i) the software program itself; (ii) the online help system and any printed documentation relating to the usage or functionality of the software and (iii) any included or associated media, e.g. graphics, images, photographs, logos, animations, videos, sounds, music, text, applets and forms.
1.2 While PRODUCT gives the opportunity to clone systems and parts thereof, You should be aware that additional licenses of the cloned systems or the cloned parts thereof may be necessary. FLUIDOPS is not liable for any infringement of third party rights resulting in connection with such cloning.
2. Applicable Terms and Conditions
2.1 PRODUCT is licensed solely under this License Agreement. Other license agreements or terms and conditions shall be deemed to be not valid.
2.2 The terms and conditions of PRODUCT’s Maintenance Agreement remain unaffected.
3. Governing Law and General Provisions
3.1 This License Agreement and the use of the PRODUCT shall be governed and construed exclusively by German law, with the exception of the conflicts of law principles thereof. The UN Sales Convention shall not apply.
3.2 You submit to the jurisdiction of the courts located in Germany with respect to any legal proceedings arising out of this agreement or the provision or use of the PRODUCT. The courts of Mannheim shall have exclusive jurisdiction for all legal persons or merchants within the meaning of the German Commercial Code (“Handelsgesetzbuch”) as well as for all natural persons having their domicile or habitual residence outside of Germany.
3.3 If any provision of this License Agreement is found to be invalid or unenforceable by a court of competent jurisdiction, the other provisions of this License Agreement shall remain in full force and effect.
3.4 PRODUCT is solely licensed to natural or legal persons or a partnerships with legal personality who or which, when entering into this License Agreement, act in exercise of their trade, business or profession (“Entrepreneur”). Please contact FLUIDOPS if you are not an Entrepreneur but intend to use PRODUCT.
3.5 Amendments or additions to this Agreement must be made in writing to be effective. This shall also apply to amendments of this written form requirement.
3.6 You shall only be entitled to an offset or a right of retention to the extent that your counter-claim has been expressly recognized by FLUIDOPS or by court in a final judgment.
II. Implementation Service
Implementation services are not covered by this License Agreement. The performance of such services is subject to a separate written agreement.
III. Trial Version
1. Registration
1.1 You need to register first in order to download the trial version of PRODUCT. By clicking on the “Accept”-button you agree not to download the PRODUCT by any means other than through the provided login interface.
1.2 You acknowledge creating unique login data, including Login ID and password. You must keep your login data strictly confidential. You are responsible for maintaining the confidentiality of your login data and are solely and fully responsible and liable for all activities that occur under your password, Login ID, or account, unless the breach of confidentiality did not occur by your fault. In the event of a possible breach of confidentiality, such as loss, theft, or unauthorized disclosure or use of your login data you shall immediately notify FLUIDOPS via email, fax or in writing.
2. Trial Period
The PRODUCT is offered as a 30-days-trial-version. Your license to use the PRODUCT expires within 30 days after installing the PRODUCT (“Trial Period”) without further notice. FLUIDOPS can extend the Trial Period at its own discretion. The extension shall be declared by email, fax or in writing.
3. Grant of License during Trial Period
3.1 You are entitled to test the PRODUCT by installing it on your computer hardware. Please refer to the system requirements stated in the documentation.
3.2 You are granted a non-transferable, non-exclusive and time limited license to use the object code of the PRODUCT. This use shall be granted is (i) for your internal business utilization on your hardware hosted by you, (ii) for your hosting activities, for your internal and external clouds (provided by you) and (iii) your training and demonstration use cases. You may not
- decompile, reverse engineer or disassemble the PRODUCT. Interface information is given to you upon request solely for the purpose of achieving interoperability of an independently created computer program;
- change the programming not even for correction of defects;
- remove any copyright notice, serials or other identifying features;
- grant under-licenses, lease or resell the PRODUCT.
3.3 You are allowed to copy the PRODUCT as far as it is necessary for its proper usage, e.g. installation on your hardware and loading into RAM. Additionally, you are allowed to make one backup-copy. You must not make copies for other purposes.
4. Liability during Trial Period
During Trial Period the PRODUCT is provided on an “as is” basis. FLUIDOPS is only liable
a) for defects which are due to intentional conduct or were fraudulently concealed (Art. 600 German Civil Code) and
b) for damages only in cases of willful misconduct or gross negligence
The above mentioned limitations of liability do not apply to (i) damages for injuries to life, health or body due to negligent breach of duty; (ii) claims under the German Product Liability Act (“Produkthaftungsgesetz”) and (iii) guarantees.
FLUIDOPS is responsible for fault on the part of its legal representatives, and of persons whom FLUIDOPS uses to perform its obligation, to the same extent as for fault on his own part.
The liability of FLUIDOPS’ vicarious agents, employees and representatives is limited to the above mentioned extend.
5. End of Trial Period
At the end of the trial period
a) you can purchase a license key for further usage of the PRODUCT according to sec. IV. and you have the additional opportunity to enter into PRODUCT Maintenance Agreement;
or
b) you are no longer entitled to possess or to use the PRODUCT and have to delete any copies of it. Thus the functionality of PRODUCT is limited by technical means at the end of the trail period.
IV. Purchased PRODUCT
1. License Fee
1.1 By submitting an order of a license key you submit a legally binding offer to purchase PRODUCT. FLUIDOPS accepts your offer by sending you a respective fulfillment confirmation via email, fax or in writing. You are obliged to pay the license fee according to FLUIDOPS’ price list valid on the date of the order upon acceptance of your offer by FLUIDOPS. You are obliged to inform FLUIDOPS of any necessary data to calculate the license fee upon ordering the license key. FLUIDOPS will invoice the license fee.
1.2 You shall inform FLUIDOPS immediately by giving notice by email, fax or in writing as soon as the number of required licenses has increased after your order. The notice has to contain the increased number of licenses. FLUIDOPS will invoice the additional license fee for the increased number of licenses according to the price list (i) valid on the date of your order, if FLUIDOPS receives your aforementioned notice within a period of 4 months after the date of your order, or otherwise (ii) valid on the date of receiving your aforementioned notice.
1.3 Please note that the functionality of PRODUCT may be affected if the number of required licenses has increased and no additional license fee is paid by you as set out in sec. IV.1.2. FLUIDOPS may implement respective technical routines in PRODUCT.
1.4 All fees and prices stated in FLUIDOPS’ price list and in this License Agreement are excluding any applicable Value Added Tax which shall be invoiced and paid in addition to all fees if applicable.
2. Grant of License and License Key
2.1 After having paid the full amount of the license fee you will receive a license key. The license key is sent to your email-address according to your registration information. You may not use this license key unless you have paid the license fee.
2.2 Having received the license key and having paid the license fee you are granted a license to use PRODUCT in the scope of your Trial-Period-License according to sec. III. 3.2 and 3.3 but unlimited in time and limited to the usage on a system using up to the number of licenses as informed of and paid by you according to sec. IV. 1.
2.3 You may not lease or resell PRODUCT or otherwise transfer the license key to another person. However, you shall be entitled to permanently transfer the license key and to give away all of your copies of PRODUCT purchased by you, including all purchased licenses, to a third party, provided that the third party agrees to the continued validity of this License Agreement also in respect to such party. In the case of such a transfer, you must hand over to such third party all copies of PRODUCT, including any existing backup copies, or destroy the copies not handed over. Leasing, selling or giving away only parts of the licenses or of PRODUCT shall not be admissible.
2.4 All rights in PRODUCT and all copies thereof shall remain in the sole ownership of FLUIDOPS until the complete payment of the license fee. As a result, the granting of rights under this Agreement is subject to the complete payment of the license fee. Upon breach of contract by you, in particular on default of payment, FLUIDOPS shall be entitled to require at your expense (i) the return of all tangible copies of PRODUCT, and (ii) the deletion of all intangible copies thereof. In such case upon FLUIDOPS’ request you shall confirm in writing that no copies of PRODUCT were retained and that all installations thereof have been irrevocably deleted from your or third party's systems.
3. Warranty
3.1 FLUIDOPS shall be liable for material defects of PRODUCT according to German Sales Law (sec. 433 ff. of the German Civil Code – “Buergerliches Gesetzbuch”). Product descriptions, technical specifications or data presented by FLUIDOPS or third parties in public statements, including but not limited to promotional presentations or materials, are no quality description. FLUIDOPS does not give any guarantees unless separately agreed in writing. The parties agree that it is no defect if a functionality is not or not properly available because of an alteration (e.g update or new release) of your operating system, software environment or hardware unless the alteration is made by FLUIDOPS.
3.2 Defects must be notified with a comprehensible description of the error symptoms, as far as possible evidenced by written recordings, hard copies or other documents demonstrating the defects. The notification of the defect should enable the reproduction of the error as far as possible. You must give FLUIDOPS sufficient possibilities to analyze and defects. This includes (i) remote access (at least ADSL) to the system where PRODUCT is installed and (ii) the provision of a contact person who is experienced in the use of PRODUCT and the system it is used in. This shall not affect your statutory obligation to inspect and notify defects
3.3 FLUIDOPS may remove material defects by alternative performance or by remedy of defect. Alternative performance can be done by delivering a new program version of PRODUCT or a work-around as far as it is not unreasonable to you, .e.g. as far as you do not need a new operating system or new hardware for it.
3.4 If FLUIDOPS fails to remove material defects within a reasonable period of time set by you or if the removal of defects has failed you are entitled to
a) reduce the license fee or withdraw from this License Agreement and
b) claim damages or reimbursement of expenses according to sec. IV. 5
The removal of material defects shall be regarded as failed if (i) the defects were not removed even though you have given FLUIDOPS adequate opportunity to alternative performance or remedy of defect, (ii) alternative performance and remedy of defect are unfeasible, (iii) FLUIDOPS rejects removal of defects or (iv) removal of defects is unreasonable to you for other reasons. In case of insignificant defects you may not withdraw from contract.
It is not necessary for you to set a reasonable period of time if (i) alternative delivery and remedy of defect are unfeasible, (ii) FLUIDOPS rejects removal of defects or (iii) removal of defects is unreasonable to you for other reasons. In case of insignificant defects you are not entitled to withdraw from this License Agreement.
3.5 FLUIDOPS’ warranty for a defect is excluded
a) as far as PRODUCT has been changed by you or a third party not explicitly authorized by FLUIDOPS unless such changes (i) have no impact on the arising cause of the defect or (ii) have been made following instructions of FLUIDOPS;
b) as far as PRODUCT is not used in accordance with the present License Agreement and the system requirements as outlined in the user manual (if applicable), unless this has no impact on the arising cause of the defect;
c) if PRODUCT is not used in a properly and sufficiently licensed and maintained system environment unless this has no impact on the arising cause of the defect;
d) for a computer program, data base works or databases or parts thereof, which do not form part of PRODUCT;
e) if updates or other measures to correct errors, provided by FLUIDOPS have not been installed and if the defect would have been cured by such updates or bug fixes, unless the installation thereof is unreasonable for the you because of reasons for which you are not responsible
3.6 Warranty claims shall be time-barred after one year of submitting the license key to you. By way of derogation claims for damages from injury to life, body or health due to negligent breach of duty by FLUIDOPS or intentional or negligent breach of duty by a legal representative or a person used to perform an obligation of FLUIDOPS or claims for other damages arising from a grossly negligent breach of duty by FLUIDOPS or from an intentional or grossly negligent breach of duty by a legal representative of fluidOps or a person used to perform an obligation of FLUIDOPS shall be time-barred within the legal limitation periods. Precondition for any warranty claim is your full compliance with all requirements regarding inspection and objection established by sec. 377 German Commercial Code (“Handelsgesetzbuch”).
4. Warranty for Defects in Title
4.1 FLUIDOPS warrants that PRODUCT shall be free from third party rights, which prevent the use in accordance with this License Agreement.
4.2 If third parties are entitled to such rights and they pursue these, then you shall inform FLUIDOPS without delay of the claiming of such rights and shall give FLUIDOPS all power of attorney and authorizations which are necessary in order to defend PRODUCT against the claimed third party rights.
4.3 To the extent that there are defects in title, FLUIDOPS is (a) entitled at its option to either (i) take legitimate measures to remove the third party rights, which impair contractual use of PRODUCT, or (ii) remedy the enforcement of such claims, or (iii) change or replace PRODUCT in such manner, that it no longer infringes the rights of third parties, provided and to the extent that this does not substantially impair the warranted functionality of PRODUCT, and (b) under an obligation to reimburse you for your necessary refundable costs incurred in the enforcement of legal claims.
4.4 If FLUIDOPS fails to remove the defects in title according to paragraph 4.3 within a reasonable period of time set by you, then you shall have the rights according to sec. IV. 3.3. The provisions under sec. IV. 3.4 shall be applied mutatis mutandis.
5. Limitation of Liability
5.1 FLUIDOPS is liable for damages in cases of willful misconduct or gross negligence.
In cases of simply negligently caused breaches of essential contractual duties (“cardinal duties”), FLUIDOPS’ liability for pecuniary losses is limited to foreseeable damages. Cardinal Duties are such basic duties which form the essence of this License Agreement, which were decisive for the conclusion of this License Agreement and on the performance of which you may rely.
FLUIDOPS is not liable for simply negligently caused breaches of a non-essential duty of contract.
5.1.1 In order to determine whether FLUIDOPS shall be liable it should be taken into account that software cannot be programmed without defects.
5.1.2 You are responsible for regularly backing up your data and for regularly verifying the success of such backup measures. FLUIDOPS shall be liable for loss of data under the conditions laid down in this License Agreement only up to the amount of typical recovery costs which would have arisen if proper and regular data backup measures had been taken
5.1.3 FLUIDOPS is responsible for fault on the part of its legal representatives, and of persons whom FLUIDOPS uses to perform its obligation, to the same extent as for fault on his own part.
5.2 The above mentioned limitations of liability do not apply to (i) damages for injuries to life, health or body due to negligent breach of duty; (ii) claims under the German Product Liability Act (“Produkthaftungsgesetz”), (iii) guarantees and (iv) willful misconduct.
5.3 The liability of FLUIDOPS’ vicarious agents, employees and representatives is limited to the above mentioned extend.
5.4 The above mentioned limitations of liability shall be applied mutatis mutandis to FLUIDOPS’ liability for reimbursement of expenses.
V. Beta Program
1. License terms and conditions applicable to software provided within the Beta Program are exactly the same as set forth in section "TRIAL VERSION" above, except that if this software is distributed as part of the Beta Program then the terms of the Beta Participant Agreement, whether or not signed by beta participants, will override any conflicting terms in this end user license agreement.
The PRODUCT is offered to a restricted community with controlled releases on an irregular base. Your license to use the PRODUCT Beta Software by FLUIDOPS can be revoked at any time without prior notice. After applying for the Beta Program, your participation must first be approved.
Software itself labeled “BETA”, “PRE RELEASE” or similar means you have obtained the Software via participation in our Beta Program.
For avoidance of doubt it is expressly stated that use of any beta software is at your own risk.
If you have any questions about whether your use of the software is subject to the terms of the beta participant agreement then please check with the party through whom the software was obtained.
2. Limitation of Liability and Warranty
The PRODUCT Beta Software is provided on a “beta” basis. The usage of beta software is at your own risk.
FLUIDOPS’ liability and warranty is limited to the same extend as set forth in section “Trial Version”.
You are aware of the fact that software on a “beta” basis and labeled “BETA” or “PRE RELEASE” lacks the functionalities of the final version of the respective software and contains defects which may lead to malfunctions, to loss of data and to a total breakdown of the respective system and software environment. Such software may only be used for testing purposes and is not supposed to be used in a production environment.
If you do not agree to this and to the limitation of liability: Do not use this beta software.
3. Term and Termination. This Agreement will automatically expire on the first day FLUIDOPS makes available the production version of the Beta Software, unless earlier terminated as set forth below in this paragraph.
Either FLUIDOPS or you may terminate this Agreement at any time.
This Agreement shall terminate automatically, without notice, if you fail to comply with the terms of this Agreement. Upon any termination of this Agreement, you must discontinue use of the Beta Software and uninstall and destroy all copies of the Beta Software you have obtained or made.
4. Technical Support
Technical support is not provided for the Beta Software.
License Agreement Last Updated: June 21, 2017
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fluidOps Maintenance Agreement
IMPORTANT, PLEASE READ CAREFULLY: THIS MAINTENANCE AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU AND FLUID OPERATIONS AG, ALTROTTSTR. 31, 69190 WALLDORF, GERMANY ("FLUIDOPS"), FOR THE MAINTENANCE OF THE SOFTWARE PRODUCT DELIVERED WITH THIS AGREEMENT (“PRODUCT”). BY CLICKING ON THE "I ACCEPT" OR "I AGREE" BUTTON OR OTHERWISE ORDERING MAINTENANCE SERVICES, YOU AGREE TO BE BOUND BY THIS MAINTENANCE AGREEMENT. IF YOU DO NOT AGREE YOU ARE NOT ENTITLED TO GET MAINTENANCE SERVICES.
1. PRODUCT
The PRODUCT mentioned herein is the software product from FLUIDOPS as defined in the installation package and FLUIDOPS’ product list and consists of the software program and related products and services, including but not limited to: (i) the software program itself; (ii) the online help system and any printed documentation relating to the usage or functionality of the software and (iii) any included or associated media, e.g. graphics, images, photographs, logos, animations, videos, sounds, music, text, applets and forms.
2. Applicable Terms and Conditions
2.1 PRODUCT is maintained solely under this Maintenance Agreement. Other agreements or terms and conditions shall be deemed to be not valid.
2.2 The terms and conditions of PRODUCT License Agreement remain unaffected.
3. Conclusion of Contract
By submitting an order of maintenance services (e.g. ordering an additional maintenance package or ordering a license and maintenance bundle) you submit a legally binding offer to enter into this Maintenance Agreement. FLUIDOPS accepts your offer by sending you a respective fulfillment confirmation via email, fax or in writing.
4. Scope of Service
4.1 FLUIDOPS agrees with you to maintain PRODUCT as purchased and licensed under PRODUCT License Agreement and to support you in its use subject to the conditions of this Maintenance Agreement. Please note that no maintenance services are performed during Trial Period as set out in PRODUCT License Agreement. Precondition for the performance of maintenance services is the purchase of a license key and the payment of the respective license fee as set out in PRODUCT License Agreement.
4.2 FLUIDOPS shall provide the following maintenance services:
− consultancy and support in connection with the functions of PRODUCT;
− dealing with errors which occur during the proper use of PRODUCT;
− delivery of updates and/or upgrades of PRODUCT.
FLUIDOPS has the right to engage subcontractors to provide the services under this Maintenance Agreement.
4.3 The maintenance services also include dealing with errors or other defects in PRODUCT, which become known to FLUIDOPS independent of its use by you.
4.4 Dealing with errors for the purposes of maintenance services comprises narrowing down the causes of the error, error diagnostics as well as services directed towards correcting the error (particularly patches and service packs). FLUIDOPS shall react on errors according to sec. 6 of this Agreement but does not warrant the correction of errors and undertakes no liability thereof. Services for dealing with errors may, at the option of FLUID OPERATION, also be provided through workarounds, delivery of updates or upgrades or, upon prior consultation with you, through delivery of a new version.
4.5 The scope of maintenance services does not include:
a) services for PRODUCT, if it is not used in accordance with the conditions of the License Agreement and of the system requirements stated in the documentation;
b) services for PRODUCT, if it has been changed by programming not carried out by FLUIDOPS;
c) services for computer programs or parts thereof, which do not form part of PRODUCT;
d) services for PRODUCT, where updates or other measures to correct the error, provided by FLUIDOPS have not been installed and where the error would have been cured by such updates or bug fixes, unless the installation thereof is unreasonable for you for which you are not responsible;
e) services for PRODUCT at a release version that is no longer generally supported by FLUIDOPS;
f) services that could not be performed by telephone, fax, email or remote data transmission;
g) services that become necessary due to your failure to cooperate or to follow instructions already given to you.
4.6 Your warranty rights set out in the License Agreement shall remain unaffected.
5. Hotline
FLUIDOPS will provide an email address and a telephone hotline on basis of 24 hours / 7 days a week to assist you in reporting errors and in providing first-line support in the use and operation of PRODUCT. You agree to provide FLUIDOPS with contact persons who are qualified in the proper usage of your hardware and software system.
6. Service Level Agreement
6.1 Defects and errors according to sec. 4 of this Agreement are classified as critical, vital or simple.
a) Critical: It is impossible or nearly impossible to use PRODUCT, e.g. PRODUCT does not work at all or there are continuing abnormal program terminations;
b) Vital: The proper usage of PRODUCT is severely limited but not impossible or nearly impossible, e.g. permanent error messages.
c) Simple: Every limitation of proper usage, not regarded as a critical or vital error, shall be regarded as a simple error.
The classification will be done by FLUIDOPS at its best judgment.
6.2 Depending on the classification of an error FLUIDOPS will make reasonable effort to respond upon receipt of a sufficiently specific error description, including malfunction, affected components, and yet undertaken steps within the reaction time frames set out in the Appendix to this Maintenance Agreement. This Appendix forms part of this Agreement and shall be attached thereto.
Reaction time shall mean the period, within which FLUIDOPS commences its dealing with the error. FLUIDOPS shall make reasonable efforts to provide modifications, additions or other help to correct the reported errors or to provide a workaround.
6.3 Updates, upgrades or any other dealing with errors can only be made by a remote data transmission. You agree to provide FLUIDOPS with a secure and apt remote access to your system on which PRODUCT is installed. The remote access shall support at least ADSL-standard.
7. Maintenance Fee
7.1 You are obliged to pay an annual maintenance fee in the amount of 20 % of the license fee set out in PRODUCT License Agreement. The first maintenance fee plus VAT, if applicable, will be invoiced to you together with the fulfillment confirmation according to sec. 3 of this Agreement. Any following maintenance fee shall be invoiced annually. Every invoice is payable without deduction within 14 days of the date of invoice.
7.2 If an additional license fee is owed by you because of an increased number of reqired licenses as set out in PRODUCT License Agreement the annual maintenance fee will be adapted accordingly. The adaption shall take effect upon your increasing of licenses. FLUIDOPS will invoice the additional maintenance fee pro rata temporis together with the additional license fee as set out in the PRODUCT License Agreement, i.e. FLUIDOPS will invoice the additional maintenance fee for the increased number of licenses according to the price list (i) valid on the date of your order of maintenance services, if FLUIDOPS receives your notice of an increased number of licenses within a period of 4 months after the date of your order of maintenance services, or otherwise (ii) valid on the date of receiving your aforementioned notice. Any following annual maintenance fee amounts to 20 % of the license fee including the additional license fee as set out in PRODUCT License Agreement.
7.3 Please note that the functionality of PRODUCT may be affected if the number of required licenses has increased and the respective additional license and maintenance fee is not paid by you. The scope of maintenance services does not include services for PRODUCT necessary because of any resulting loss or limitation of functionality.
8. Warranty
8.1 To the extent updates, upgrades, new releases or other items are delivered to you under this Maintenance Agreement, FLUIDOPS shall be liable for material defects of updates, upgrades or new releases of PRODUCT with respect to the new features implemented therein according to German Sales Law (sec. 433 ff. of the German Civil Code - "Buergerliches Gesetzbuch"). Product descriptions shall not be deemed guaranteed unless separately agreed.
8.2 FLUIDOPS may remove such material defects by alternative performance or by remedy of defect. Alternative performance can be done by delivering a new program version of PRODUCT as far as it is not unreasonable to you, .e.g. as far as you do not need a new operating system or new hardware for it.
8.3 If FLUIDOPS fails to remove such material defects within a reasonable period of time set by you or if the removal of defects has failed you are entitled to
a) reduce the maintenance fee or terminate this Maintenance Agreement for cause according to sec. 13 and
b) claim damages or reimbursement of expenses according to sec. 9.
The removal of defects shall be regarded as failed if (i) the defects were not removed even though you have given FLUIDOPS adequate opportunity to alternative performance or remedy of defect, (ii) alternative performance and remedy of defect are unfeasible, (iii) FLUIDOPS rejects removal of defects or (iv) removal of defects is unreasonable to you for other reasons. In case of insignificant defects you may not withdraw from contract.
8.4 Warranty claims shall be time-barred after one year of submitting the defective update, upgrade, new release or other item to you. Precondition for any warranty claim is your full compliance with all requirements regarding inspection and objection established by sec. 377 German Commercial Code ("Handelsgesetzbuch").
9. Warranty for Defects in Title
9.1 To the extent updates, upgrades, new releases or other items are delivered to you under this Maintenance Agreement, FLUIDOPS warrants that updates, upgrades or new releases of PRODUCT shall be free from third party rights, which prevent the use of PRODUCT in accordance with PRODUCT License Agreement and this Maintenance Agreement.
9.2 If third parties are entitled to such rights and they pursue these, then you shall inform FLUIDOPS without delay of the claiming of such rights and shall give FLUIDOPS all power of attorney and authorizations which are necessary in order to defend the respective updates, upgrades or new releases of PRODUCT against the claimed third party rights.
9.3 To the extent that there are such defects in title, FLUIDOPS is (a) entitled at its option to either (i) take legitimate measures to remove the third party rights, which impair contractual use of PRODUCT, or (ii) remedy the enforcement of such claims, or (iii) change or replace the respective updates, upgrades or new releases of PRODUCT in such manner, that it no longer infringes the rights of third parties, provided and to the extent that this does not substantially impair the warranted functionality of PRODUCT as set out in PRODUCT License Agreement, and (b) under an obligation to reimburse you for your necessary refundable costs incurred in the enforcement of legal claims.
9.4 If FLUIDOPS fails to remove the defects in title according to paragraph 9.3 within a reasonable period of time set by you, then you shall have the rights according to sec. 8.3. The provisions under sec. 8.4 shall be applied mutatis mutandis.
10. Limitation of Liability
10.1 FLUIDOPS is liable for damages in cases of willful misconduct or gross negligence. FLUIDOPS is not liable for simply negligently caused breaches of a non-essential duty of contract.
In cases of simply negligently caused breaches of essential contractual duties ("cardinal duties"), FLUIDOPS' liability for pecuniary losses is limited to foreseeable damages.
FLUIDOPS shall be liable for loss of data only up to the amount of typical recovery costs which would have arisen had proper and regular data backup measures been taken
10.2 The above mentioned limitations of liability do not apply to (i) damages for injuries to life, health or body; (ii) claims under the German Product Liability Act ("Produkthaftungsgesetz"), (iii) guarantees and (iv) willful misconduct.
10.3 The liability of FLUIDOPS' vicarious agents, employees and representatives is limited to the above mentioned extend.
11. No Effect on License Agreement
Under no circumstance material defects and defects of title, with regard to updates, upgrades, new versions or other items delivered under this Maintenance Agreement, shall have any effect on PRODUCT License Agreement.
12. Scope of Use
12.1 To the extent that under this Maintenance Agreement supplied computer programs or other works capable of independent copyright protection, such computer programs as well as the rights to use them shall be governed by the grant of license according to PRODUCT License Agreement. Thus having received the respective computer program and having paid the maintenance fee you are granted a license to use this computer program solely as a part of PRODUCT in the scope of your license as set out in PRODUCT License Agreement.
12.2 If FLUIDOPS sends you a new release of PRODUCT, specifically named by FLUIDOPS as a new release version, you shall make any reasonable effort to install this new release. Prior releases will only be supported and covered by this agreement for a maximum of 12 month after a new release has been made available. You may keep copies of prior releases for documentation purposes. The grant of license for this new release version complies with the grant of license for the prior version (as set out in PRODUCT License Agreement).
13. Termination
13.1 This Maintenance Agreement shall be concluded for a term of 12 months.
13.2 The right of termination for cause shall remain unaffected.
Significant reasons for FLUIDOPS for exercising the right of termination for cause are e.g. (i) non-compliance with payment periods for maintenance or license fees; (ii) you have persistently breached substantial contractual duties and have remained in breach of them despite receiving a formal warning accompanied by a deadline for compliance; or (iii) a petition is filed to commence insolvency proceedings with respect to you or your assets or any such insolvency proceedings are refused due to lack of sufficient assets.
13.3 Any rights of usage already granted to you and PRODUCT License Agreement itself remain unaffected by a termination of this Maintenance Agreement.
13.4 Termination notices must be given in writing.
14. Governing Law and General Provisions
14.1 This Maintenance Agreement and any maintenance services performed by FLUIDOPS shall be governed and construed exclusively by German law, with the exception of the conflicts of law principles thereof. The UN Sales Convention shall not apply.
14.2 You submit to the jurisdiction of the courts located in Germany with respect to any legal proceedings arising out of this Agreement or the provision or use of the PRODUCT. The courts of Mannheim shall have exclusive jurisdiction for all legal persons or merchants within the meaning of the German Commercial Code ("Handelsgesetzbuch") as well as for all natural persons having their domicile or habitual residence outside of Germany.
14.3 If any provision of this Maintenance Agreement is found to be invalid or unenforceable by a court of competent jurisdiction, the other provisions of this Maintenance Agreement shall remain in full force and effect.
14.4 The PRODUCT is solely maintained for natural or legal persons or a partnerships with legal personality who or which, when entering into this Maintenance Agreement, act in exercise of their trade, business or profession ("Entrepreneur"). Please contact FLUID OPERATION if you are not an Entrepreneur but intend to enter into a Maintenance Agreement with FLUIDOPS.
14.5 Amendments or additions to this Agreement must be made in writing to be effective. This shall also apply to amendments of this written form requirement.
14.6 You shall only be entitled to an offset or a right of retention to the extent that your counter-claim has been expressly recognized by FLUIDOPS or by court in a final judgment.
Support Service Levels
FLUIDOPS will provide the following service levels under the terms defined in the maintenance agreement:
- Access to online community, documentation and how-to guides
- Email- and telephone support
1st and 2nd level support: reaction within 4 hours, availability 24x7
3rd level support: reaction time within next German business day, which is defined as 9am-7pm (GMT+1) on working days Mo.-Fr., excluding german bank holidays.
- Auto-Diagnostic (EAD) and remote support
- FLUIDOPS requests the customer to provide remote access
- Escalation process for critical issues
- Access to updates and bug fixes
Maintenance Agreement Last Updated: June 21, 2017
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Terms and Conditions for Services
IMPORTANT, PLEASE READ CAREFULLY: THESE TERMS AND CONDITIONS ARE A LEGAL AGREEMENT BETWEEN YOU (HEREINAFTER “CUSTOMER”) AND FLUID OPERATIONS AG, ALTROTTSTRAßE 31, D-69190 WALLDORF, GERMANY (HEREINAFTER “FLUIDOPS”) FOR THE PERFORMANCE OF SERVICES
1. Scope and Subject Matter
1.1 The following terms and conditions shall apply exclusively for the performance of services in connection with FLUIDOPS Software (hereinafter “Services”).
1.2 As far as FLUIDOPS customizes software programs or makes changes to software programming on the basis of requirements individually defined by CUSTOMER, Ser-vices qualify as work deliverables which will be governed by Section 631 German Civil Code (“Work Deliverables” – “Werkleistungen” ). In all other cases Services qualify as service deliverables which will be governed by Section 611 German Civil Code (“Service Deliverables” – “Dienstleistungen”). Further details about the Services to be performed by FLUIDOPS are set forth in the Statement of Work and its at-tachments that references these terms and conditions (hereinafter “SOW”). These terms and conditions are part of the SOW.
1.3 These terms and conditions and the SOW constitute rights and obligations solely of the parties.
1.4 Services are solely performed by FLUIDOPS under these terms and conditions. Other agreements or terms and conditions shall be deemed to be not valid unless expressly agreed to by FLUIDOPS. FLUIDOPS Software License Agreement and FLUIDOPS Software Maintenance Agreement shall remain unaffected and shall prevail in case of conflict.
2. Performance of the Services
2.1 Work Deliverables have to comply with the generally accepted rules of technology and good practice. FLUIDOPS is not obliged to deliver a software documentation for Work Deliverables, unless otherwise explicitly agreed in the SOWand its attachments. Besides, FLUIDOPS is free to manage the performance of the Services, including but not limited to the place and time of performance. Nevertheless, FLUIDOPS shall ob-serve place or time targets or other individual requirements explicitly set forth in the the SOW and its attachments.
2.2 FLUIDOPS may engage subcontractors to provide the Services.
2.3 The parties may agree amendments and additions to the content or extent of the Ser-vices (hereinafter “change request”) as far as it is reasonable and technically feasible for FLUIDOPS. Such an agreement can be made by the contact persons in a project meeting, by telefax, in writing or by any other means. The CUSTOMER shall pay the additional remuneration to FLUIDOPS for the performance of the change request. This additional remuneration shall be calculated from the costs and remuneration of the requested amendments, including but not limited to the necessary man hours for the performance of the change request. Any deadline or time limit already agreed be-tween the parties at the time of the change request shall be extended by the duration of the time used to agree the change request and needed by FLUIDOPS to perform it.
2.4 Performance of Service Deliverables must be evidenced by appropriate activity reports submitted by FLUIDOPS and countersigned by the CUSTOMER, CUSTOMER’s contact person or any other person authorized by CUSTOMER. For each calendar week, unless otherwise agreed, FLUIDOPS shall provide the CUSTOMER without undue delay with a written activity report showing details of the person, time worked, location of work, and activities for labor hour SOWs. The CUSTOMER is under an obligation to sign off the presented reports to show its agreement without delay, how-ever at the latest within 3 days of receipt. To the extent the CUSTOMER does not agree with the presented reports, the CUSTOMER shall detail any objections to the reports in writing or by telefax within this period. The parties shall then attempt to clarify the situation without delay, whereupon the reports shall be signed off by the CUSTOMER without delay.
2.5 After having finished a Work Deliverable, FLUIDOPS shall notify the CUSTOMER by email, telefax or in writing. The CUSTOMER shall declare the acceptance of Work Deliverables without delay, if there are no substantial defects to the respective Work Deliverables having impact on the functionality thereof. The CUSTOMER may not refuse the acceptance of the Work Deliverable due to minor defects which do not have a substantial impact on the functionality of the Work Deliverable. If acceptance is not explicitly declared, it shall be deemed to be declared with the payment for the respective Services. The provisions under sec. 640 par. 1 sentence 3 German Civil Code (“Buergerliches Gesetzbuch”) shall remain unaffected. The parties may agree in the SOW that FLUIDOPS is entitled to demand the partial acceptance of certain milestones as defined in the SOW and its attachments.
2.6 FLUIDOPS has no managerial authority towards CUSTOMER’s employees and is not integrated in its business organization.
3. Remuneration
3.1 The CUSTOMER shall pay the remuneration set forth the SOW. FLUIDOPS’ remu-neration is based on the time spent for the performance of the Services, unless the par-ties explicitly agree a lump-sum in the SOW. In addition to the agreed remuneration, FLUIDOPS is entitled to be reimbursed for the disbursements and expenses necessary for the provision of the Services, including but not limited to travel expenses and trav-el allowances, unless otherwise agreed in the SOW. FLUIDOPS shall invoice these in a manner which can be verified either together with the provided Services or separate-ly shortly thereafter.
3.2 FLUIDOPS will invoice the remuneration to the CUSTOMER in accordance with the payment schedule set forth in the SOW. In first instance in the case of absence of such payment schedule, FLUIDOPS will invoice the CUSTOMER each month for the Services rendered during the preceding month. Respective activity reports (sec. 2.4) should be attached to the invoice. Labor hours begun but not finished are invoiced on a pro-rata basis.
3.3 In case of a lump-sum agreement, the provisions under the aforementioned paragraph and under sec. 2.4 shall not apply. In that case FLUIDOPS shall submit to the CUSTOMER a monthly report of the Services provided under the SOW, unless oth-erwise agreed in the SOW. FLUIDOPS will invoice the lump-sum plus an additional remuneration for change requests, if applicable, at the at the end of the project. FLUIDOPS may invoice payments on account. Further details may be agreed in the SOW, including a payment schedule or milestone plan.
3.4 Services outside the agreed extent of Services or subject matter of these terms and conditions shall be paid for by the CUSTOMER separately.
3.5 All amounts stated in these terms and conditions, the SOW or the attachments thereto are excluding any applicable Value Added Tax. The applicable rate of statutory Value Added Tax shall be invoiced and paid in addition to all fees. FLUIDOPS shall state the rate and amount of Value Added Tax separately on the invoice.
3.6 The end of the project in the meaning of these terms and conditions shall be (i) for Service Deliverables: on the date of the expiration of the term of the SOW and (ii) for Work Deliverables: on the date of their acceptance by the CUSTOMER as set out in sec. 2.5.
3.7 In case of a time-based remuneration, FLUIDOPS cannot demand payment for ab-sence because of illness, vacation or because of other circumstances, for which solely FLUIDOPS is responsible. In case of a lump-sum remuneration, there shall be no re-duction of the payment because of such absence.
3.8 The parties may agree an advance payment in the SOW or its attachments.
4. Relationship of FLUIDOPS to Third Parties
FLUIDOPS may at its own discretion enter into agreements or perform services for third parties.
5. Confidentiality
5.1 Each party expressly undertakes to retain in confidence all Confidential Information transmitted, during, after or - related to the subject - before the execution of the SOW, to the other party. Confidential Information in the meaning of these terms and conditions shall be any information
a) explicitly declared as being confidential,
b) legally protected by Sec. 17, 18 German Unfair Competition Act (Gesetz gegen den unlauteren Wettbewerb – UWG),
c) legally protected as an industrial property and similar right or by copyright law, in-cluding but not limited to computer programs and parts or functionalities thereof according to Sec 69a ff. German Copyright Law (Urheberrechtsgesetz – UrhG),
d) protected by data protection rules and regulations or as a bank secret, with compa-ny data treated as personal data,
e) software and related documentation including, but not limited to, the FLUIDOPS Software, as well as the following information regarding FLUIDOPS Software: (i) object and source codes, programming techniques and programming concepts, methods of processing, system designs embodied in FLUIDOPS Software; and (ii) discoveries, inventions, concepts, designs, flow charts, documentation, product specifications, application program interface specifications, techniques and pro-cesses relating to FLUIDOPS Software,
f) the existence and all terms and conditions of the SOW, its attachments and these term and conditions or
g) any other information of the other party that might be considered as confidential – irrespective of whether it is technical or commercial and which medium is used for its disclosure or if disclosed in tangible or intangible form – including all docu-ments, illustrations as well as any other data furnished to either party.
5.2 The parties undertake not to disclose Confidential Information provided by the other party (“Provider”) to third parties and to use said information exclusively for the pur-pose of executing the SOW. The parties agree that the disclosure of Confidential In-formation shall not imply the granting of any rights. The party receiving the infor-mation (“Recipient”) undertakes in particular not to use Confidential Information to apply for industrial property rights. In the event of joint technical developments the parties shall conclude an agreement governing the application for property rights and the exploitation of development results.
5.3 The Recipient shall protect the Confidential Information from any unauthorized ac-cess or disclosure at least exercising the care that Recipient customarily exercises in his own affairs (diligentia quam suis rebus). In addition, Recipient shall restrict the use of Confidential Information to its employees who are required to have said information in connection with the contemplated business. Each party shall oblige such employees to maintain confidentiality pursuant to the provisions under this sec. 5.
5.4 All tangible materials containing Confidential Information are the property of the its Provider. These confidential materials belonging to one party in the other party’s pos-session will be returned or destroyed at the option, and in accordance with the instruc-tion of, the owner, unless something different is specifically agreed to in the SOW, its attachments or these terms and conditions.
5.5 The obligations contained in this sec. 5 shall survive even after the end of the project or any other termination of the SOW.
5.6 Without granting any right or license, these obligations shall not apply to the extent that the Recipient can demonstrate that such Confidential Information of the Provid-er:
a) is in the public domain and is available at the time of disclosure or which thereaf-ter enters the public domain and is available through no improper action or inaction by the Recipient or any affiliate agent or employee of the Recipient, or
b) was in its position or known by the recipient prior to receipt from the Provider, or
c) was rightfully disclosed to the Recipient by another person without restriction, or
d) is independently developed by the recipient without access to or usage of such Confidential Information of the Provider.
The Recipient is allowed to disclose Confidential Information as far as he is bound by law or by unappealable regulatory action. The Recipient prenotifies the Provider in writing of such disclosure.
5.7 For each single case of violation of the obligations under this sec. 5 the breaching par-ty shall pay an appropriate monetary penalty to the non-breaching party between EUR 5,001.00 and EUR 250,000.00. The non-breaching party shall specify the penalty at its own reasonably exercised discretion according to sec. 315, 319 German Civil Code (Buergerliches Gesetzbuch – BGB). In doing so, the following points shall be taken into consideration: relevance and seriousness of the violation, the material or immate-rial harm suffered by the non-breaching party and the level of fault. The equitability of the specification made by the non-breaching party can be reviewed by court. If the specification is inequitable it is made by judicial decision. Assertion of additional damage is not excluded.
5.8 The Recipient shall hold the Provider harmless from any damages, costs or expenses incurred (including, but not limited to court costs and reasonable attorney’s fees) in case of a violation of the obligations under this sec. 5, unless the Recipient, its affili-ates, representatives or its employees do not act intentionally or negligently. Any pen-alty paid according to sec. 5.7 shall be credited against damages.
6. Grant of Rights
6.1 As far as Work Results are capable of independent copyright protection, the CUSTOMER is granted a non-transferable, non-exclusive, worldwide right and li-cense unlimited in time to use the object code of such Work Deliverable. This use is limited to the CUSTOMER’s internal business utilization on his own hardware.
6.2 The CUSTOMER may not
- decompile, reverse engineer or disassemble the Work Results. Interface infor-mation is given to the CUSTOMER upon request solely for the purpose of achiev-ing interoperability of an independently created computer program;
- change the programming not even for correction of defects;
- remove any copyright notice, serials or other identifying features;
- grant under-licenses, lease or resell the Work Results.
6.3 The CUSTOMER is allowed to copy the Work Results as far as it is necessary for its proper usage, e.g. installation on CUSTOMER’s hardware and loading into RAM. Additionally, the CUSTOMER is allowed to make one backup-copy. The CUSTOMER must not make copies for other purposes.
6.4 As far as Work Results are or contain changes to FLUIDOPS Software or form parts thereof the rights to use them shall be governed by the grant of license according to FLUIDOPS Software License Agreement. Thus having received the respective Work Result and having paid the respective remuneration in accordance with the provisions hereunder the CUSTOMER is granted a license to use this Work Results solely as a part of FLUIDOPS Software Software in the scope of CUSTOMER’s license as set out in FLUIDOPS Software License Agreement.
6.5 The CUSTOMER remains responsible for obtaining the licenses for the usage of third party software and products necessary as consequence of the application of the Work Results or FLUIDOPS Software.
6.6 All rights in Work Results and all copies thereof shall remain in the sole ownership of FLUIDOPS until the complete payment of the remuneration for the respective Work Result. As a result, the granting of rights under the SOW, its attachments and these terms and conditions is subject to the complete payment of the remunerations which covers the respective Work Results. Until such complete payment is made by the CUSTOMER, FLUIDOPS herewith agrees – revocable at any time and without rea-son – to the usage of the Work Results to the extend set out in this sec. 6. Upon breach of contract by the CUSTOMER, in particular on default of payment, FLUIDOPS is entitled to require at CUSTOMER’s expense (i) the return of all tangi-ble copies of the respective Work Results, and (ii) the deletion of all intangible copies thereof. In such case upon FLUIDOPS’ request the CUSTOMER shall confirm in writing that no copies of the respective Work Results were retained and that all instal-lations thereof have been irrevocably deleted from CUSTOMER’s or third party's sys-tems.
6.7 Work Results in the meaning of these terms and conditions shall be any works, com-puter programs, data base works or databases which are a result of the performance of Services by FLUIDOPS under the SOW, its attachments and these terms and condi-tions.
7. Warranty for Work Deliverables and Defects in Title
7.1 FLUIDOPS is liable for material defects of Work Deliverables and defects in title thereof according to the statutory provisions for contracts to produce a work (sec. 633 to 638 German Civil Code – BGB) unless not explicitly agreed otherwise in the SOW, its attachments or these terms and conditions. Nevertheless, the parties agree that it is not possible to customize or program software free of material defects with regard to all possible kinds of usage.
The Work Deliverables shall be substantially in accordance with the descriptions as set forth in the SOW and its attachments. Product descriptions, technical specifications or data presented by FLUIDOPS or third parties in public statements, including but not limited to promotional presentations or materials, are no quality description. FLUIDOPS does not give any guarantees unless separately agreed in writing. The par-ties agree that it is no defect if a functionality existing at the end of the project is not or not properly available because of an alteration (e.g update or new release) of CUSTOMER’s operating system, software environment or hardware unless the altera-tion is made by FLUIDOPS. In respect of updates, upgrades and the delivery of new versions as Work Deliverables under the SOW, its attachments or these terma and conditions, the rights in case of defects shall be limited to the new features of the up-date, upgrade or new version compared to the previous version release.
7.2 Defects must be notified with a comprehensible description of the error symptoms, as far as possible evidenced by written recordings, hard copies or other documents demonstrating the defects. The notification of the defect should enable the reproduc-tion of the error. Sufficient possibilities for analyzing and remedying defects must be given to FLUIDOPS by the CUSTOMER. This includes (i) remote access (at least ADSL) to the system where the Work Deliverables are installed and (ii) the provision of a contact person who is experienced in the use of the Work Deliverables and the system there are used in. This shall not affect the statutory obligation of the CUSTOMER to inspect and notify defects
7.3 To the extent FLUIDOPS grants the CUSTOMER rights under the SOW, its attach-ments and these terms and conditions FLUIDOPS warrants that the respective Work Results shall be free from third party rights, which prevent the use of them in accord-ance with their agreed functions.
7.4 If third parties are entitled to rights in the Work Deliverables and they pursue these, then the CUSTOMER shall inform FLUIDOPS without delay of the claiming of such rights and shall give FLUIDOPS all power of attorney and authorizations which are necessary in order to defend the respective Work Results against the claimed third party rights.
7.5 To the extent that there are such defects in title, FLUIDOPS shall (a) at its own dis-cretion either (i) take legitimate measures to remove the third party rights, which im-pair contractual use of the respective Work Results, or (ii) remedy the enforcement of such claims, or (iii) change or replace the respective Work Results in such manner, that it no longer infringes the rights of third parties, provided and to the extent that this does not substantially impair the agreed and warranted functionality of the respective Work Results, and (b) reimburse the CUSTOMER for his necessary refundable costs incurred in the enforcement of legal claims.
7.6 The parties agree that the remedying of a defect may also take place through the de-livery or installation of a new program version or a work-around. CUSTOMER’s right of remedy a defect himself is excluded.
7.7 If FLUIDOPS fails to remove the defects in title according to paragraph 7.7 or mate-rial defects in Work Deliverables within a reasonable period of time set by the CUSTOMER in writing, then the CUSTOMER shall have the following rights:
a) reduce the respective remuneration or terminate the respective SOW for cause as set forth in sec. 11 and
b) claim damages or reimbursement of expenses as set forth in sec. 8.
It is not necessary for the CUSTOMER to set a reasonable period of time if (i) alterna-tive performance and remedy of defect are unfeasible, (ii) FLUIDOPS rejects removal of defects or (iii) removal of defects is unreasonable to the CUSTOMER for other reasons. In case of insignificant defects the CUSTOMER is not entitled to terminate the respective SOW for cause.
7.8 FLUIDOPS’ warranty for a defect is excluded
a) as far as the Work Deliverables have been changed by the CUSTOMER or a third party not explicitly authorized by FLUIDOPS unless such changes (i) have no im-pact on the arising of the defect or (ii) have been made following instructions of FLUIDOPS;
b) as far as the Work Deliverables are not used in accordance with the conditions set out by FLUIDOPS, including but not limited to the conditions set out in SOW and its attachments, unless this has no impact on the arising of the defect;
c) if the Work Deliverables are not used in a properly and sufficiently licensed and maintained system environment unless this has no impact on the arising of the de-fect;
d) for a computer program, data base works or databases or parts thereof, which do not form part of the Work Deliverables;
e) if updates or other measures to correct errors, provided by FLUIDOPS have not been installed and if the defect would have been cured by such updates or bug fixes, unless the installation thereof is unreasonable for the CUSTOMER because of reasons for which the CUSTOMER is not responsible;
7.9 CUSTOMER’s claims under this sec. 7 shall be time-barred after one year from the date of acceptance by the CUSTOMER as set out in sec. 2.5. A shorter statutory limi-tation period shall prevail.
7.10 If FLUIDOPS undertakes to debug or remedies alleged defect of Work Deliverables upon CUSTOMER’s request without being obliged to pursuant to this sec. 7 (herein-after “Seeming Defect”), the CUSTOMER shall reimburse FLUIDOPS’ costs in the amount set forth in FLUIDOPS’ then-current price list. This shall not apply if the CUSTOMER was not able to recognize the alleged defect being a Seeming Defect even if exercising reasonable care.
8. Liability of FLUIDOPS
8.1 FLUIDOPS’ liability for damages and for reimbursement of expenses is limited ac-cording to the provisions under this sec. 8.
8.2 FLUIDOPS is liable for damages in cases of willful misconduct or gross negligence. FLUIDOPS is not liable for simply negligently caused breaches of a non-essential du-ty of contract.
In cases of simply negligently caused breaches of essential contractual duties (“cardi-nal duties”), FLUIDOPS’ liability for pecuniary losses is limited to foreseeable dam-ages. A contractual duty is essential if its fulfillment is essential for the due and proper implementation of the contract and if CUSTOMER could reasonably rely on its ful-fillment.
8.3 FLUIDOPS is generally liable for defaults of its legal representatives, subcontractors or its vicarious agents according to statutory provisions. If the CUSTOMER or any of CUSTOMER’s affiliates acts as a subcontractor or as a vicarious agent, FLUIDOPS is not liable for such subcontractor or such vicarious agent, including but not limited to defects caused by him/her, services performed by him/her or other failure of him/her to comply with the SOW, its attachments, these terms and conditions or any statutory provision.
8.4 For the purpose of determination if and to what extent FLUIDOPS acted culpably, it has to be put into consideration that software technically cannot be programmed without defects.
8.5 The foreseeable damages in the meaning of sec. 8.2 shall be limited to (i) the total amount of the agreed remuneration of the SOW for each event of damage or loss in the SOW and (ii) twice the total amount of the agreed remuneration of the SOW for all events of damage or loss in the SOW. The aforementioned calculation of the fore-seeable damages shall only be based on pecuniary losses, caused because of simple negligence of FLUIDOPS.
8.6 FLUIDOPS shall be liable for loss of data only up to the amount of typical recovery costs which would have arisen if CUSTOMER had taken proper and regular data backup measures. FLUIDOPS herewith advises the CUSTOMER of the necessity of regular data backup measures.
8.7 FLUIDOPS is not liable for information, programs and data, tangible or intangible materials, tools, IT-systems and parts thereof delivered or allocated by the CUSTOMER, its affiliates or third parties who are no subcontractors or vicarious agents of FLUIDOPS (hereinafter “Allocated Material”). FLUIDOPS is not obliged to check the rightfulness and suitability of such Allocated Material.
8.8 Damage claims are time-barred after one year from the end of the project, unless FLUIDOPS acted willfully. A shorter statutory limitation period shall prevail.
8.9 The above mentioned limitations of liability do not apply to (i) damages for injuries to life, health or body; (ii) claims under the German Product Liability Act (“Produkthaf-tungsgesetz”), (iii) guarantees and (iv) willful misconduct.
8.10 The liability of FLUIDOPS’ vicarious agents, employees and representatives is limited in the above mentioned extend.
9. Contact Person and Duty to Cooperate
9.1 Each party will name in the SOW a contact person. The contact person has to possess the information and know-how or has to have access thereto, necessary for the proper execution of the SOW. The contact person (i) shall be the primary other party’s con-tact for questions relating to the execution of the SOW and (ii) is authorized to make decisions relevant for the execution of the SOW, including but not limited to making or signing reports and to acceptance of Work Deliverables. The contact persons are not authorized to amend or to terminate the SOW or to make decisions concerning its core, including but not limited to its termination, substantial changes of any schedule of performance or of the remuneration, unless otherwise explicitly authorized.
9.2 The parties shall assure that the contact person can be contacted within usual German business hours and without substantial interruption during the execution of the SOW until the end of the project. In the event of the replacement of a contact person the re-placing party shall inform the other party without delay in writing or by telefax of the replacement and of the new contact person. The replacing party shall avoid substantial impact on the execution of the SOW because of such replacement.
9.3 The parties agree that they shall cooperate with each other in each phase of the execu-tion of the SOW closely and efficiently, whereby the personnel, organizational, expert and technical responsibility of the CUSTOMER shall also be important, in particular the CUSTOMER shall
- specify the requirements owed under the SOW and its attachments to a sufficient extent;
- supply proper notes, documentation and information necessary for the provision of the Services, in particular concerning available facilities, equipment, computer pro-grams and parts of computer programs, which are intended to function with the Services to be provided;
- make available the necessary working offices and materials;
- make available test plans and test data as well as prepare and make available the test environment;
- document and inform FLUIDOPS without delay of errors determined in the course of the test or production running of the Services provided in a form that can be reproduced, in any event which is comprehensible;
- make available at its own cost all facilities, equipment and suitably qualified per-sonnel for the cooperation, to the extent necessary for the provision of the Ser-vices;
- continue the support and maintenance of the system environment (hardware and software);
- fulfill the (cooperation) obligations on time, carry out the (cooperation) activities on time and give declarations in accordance with the time limits and
- decide and implement in good time any investments necessary as part of the pro-ject.
9.4 The CUSTOMER shall ensure that FLUIDOPS is given the right to use CUSTOMER’s own systems and the systems of third parties, to the extent that this is necessary in order to provide the Services owed under the SOW.
9.5 If the CUSTOMER fails to perform the activities for which it is responsible, then the obligations of FLUIDOPS which cannot be rendered without such activity or only by incurring disproportionate additional expenses shall be suspended for the duration of such default. Additional expenses caused thereby shall be reimbursed by the CUSTOMER to FLUIDOPS in addition to the agreed remuneration on the basis of the then-current rates per man working day/hourly rates of FLUIDOPS. This shall not affect any rights of FLUIDOPS to terminate the SOW for cause as set forth in sec. 11.
9.6 If a party fails to comply with its obligations under this sec. 9 within a reasonable pe-riod of time set by the other party in writing, the other party may terminate the SOW for cause as set forth in sec. 11.
10. Data Protection
10.1 Compliance with Data Protection Regulations: The parties shall comply with applica-ble data protection regulations and shall oblige their personnel to observe the data se-crecy pursuant Section 5 Federal Data Protection Act (“Bundesdatenschutzgesetz” - hereinafter “BDSG”).
10.2 Data Processor Agreement: The parties shall execute a data processor agreement as set forth in Section 11 BDSG in the event FLUIDOPS shall act as a data processor on behalf of the CUSTOMER.
10.3 Technical and Organizational Measures: FLUIDOPS shall observe the technical and organizational measures of the annex to Section 9 BDSG.
11. Termination of the SOW
11.1 Each SOW ends without further notice upon end of the project. The right to ordinary cancellation of a SOW is excluded. Any renewal of a SOW is subject to the conclu-sion of a new SOW, unless explicitly otherwise agreed in the SOW.
11.2 The statutory right of termination for cause shall remain unaffected. Notice of termi-nation for cause may only be given within four weeks. The notice period commences with the date on which the party entitled to give notice obtains knowledge of facts conclusive for the notice of termination. The party giving notice must notify the other party, on demand, of the reason for notice of termination without undue delay in writ-ing.
Significant reasons for FLUIDOPS for exercising the right of termination for cause are e.g.:
- unrightful refuse of signing at least one activity report by the CUSTOMER as set out in Sec. 2.4,
- unrightful refuse of acceptance by the CUSTOMER as set out in Sec. 2.5,
- non-compliance of the CUSTOMER with payment periods for remuneration of Services provided by FLUIDOPS under the SOW, despite being granted a period of grace with threat of termination
Significant reasons for each party for exercising the right of termination for cause are e.g.:
- violation of duty of confidentiality by the other party set forth in Sec. 5,
- an application is made for institution of insolvency or comparable proceedings in respect of the assets of the other party or such proceedings are refused for lack of assets or for comparable reasons,
- creditors of the other party levy execution against claims arising under the SOW,
11.3 In the event FLUIDOPS terminates a SOW for cause, FLUIDOPS is entitled to de-mand the agreed remuneration; however FLUIDOPS must allow set-off of the ex-penses saved as a result of canceling the contract. Any rights of usage already granted to the CUSTOMER for Work Results provided under the SOW shall end upon termi-nation for cause of the SOW by FLUIDOPS. With effect from the date of such ter-mination, the CUSTOMER loses any rights in these Work Results. The CUSTOMER shall upon such termination, at FLUIDOPS’ own discretion, (i) provide FLUIDOPS with all copies of the Work Results and any parts thereof (ii) delete all copies thereof and give FLUIDOPS proof of proper deletion.
11.4 In the event the CUSTOMER terminates a SOW for cause, FLUIDOPS is entitled to demand the agreed remuneration (i) for Service Deliverables as set forth in sec. 11.3 and (ii) for Work Deliverables as set forth in the first sentence of sec. 11.3, unless Work Deliverables already provided by FLUIDOPS are not usable for the CUSTOMER. If Work Deliverables are not usable for the CUSTOMER, the CUSTOMER loses any rights in them as set forth in sentences 2 to 4 of sec. 11.3.
11.5 Possible claims for damages remain unaffected in the event of termination for cause. Such claims are subject to the limitations of liability set forth in sec 8.
11.6 Termination notices must be given in writing.
12. Governing Law and General Provisions
12.1 The CUSTOMER shall only be entitled to an offset or a right of retention to the ex-tent that its counter-claim has been expressly recognized by FLUIDOPS or by court in a final judgment. This shall not apply to the offset or right of retention as far as it con-cerns counter-claims to compensate the additional costs of creating Work Deliverables being acceptable in the meaning of sec. 2.5 or to reimburse the expenses required for the remedy of defects, as far as these counter-claims exist according to these terms and conditions -.
12.2 The CUSTOMER is not entitled to assign its claims or rights arising under the SOW.
12.3 These terms and conditions, the SOW and any Services performed hereunder shall be governed and construed exclusively by German law, with the exception of the con-flicts of law principles thereof. The UN Sales Convention shall not apply.
12.4 The parties submit to the jurisdiction of the courts located in Germany with respect to any legal proceedings arising out of the SOW or the provision of the Services. The courts of Mannheim shall have exclusive jurisdiction.
12.5 If any provision of these terms and conditions or of the SOW is found to be invalid or unenforceable by a court of competent jurisdiction, the other provisions shall remain in full force and effect.
12.6 Amendments or additions to the SOW, its attachments and these terms and condi-tions must be made in writing to be effective. This shall also apply to amendments of this written form requirement.
Terms and Conditions Agreement Last Updated: June 21, 2017